Lee Daniels' 'The Butler' Now Involved in Effort to Free "We Shall Overcome" from Copyright

'Lee Daniels' The Butler'
Courtesy of The Weinstein Company

Jane Fonda played First Lady Nancy Reagan in this film about a White House butler, and conservatives who haven’t forgiven the actress they call “Hanoi Jane” for visiting the enemy during the Vietnam war called for a boycott. Asked her opinion of a man organizing one such boycott, Fonda told THR he should “Get a life … if he creates hoopla, it will cause more people to see the movie.” The $30 million film made $116.6 million domestically and was considered a success.

A major motion picture that covered the civil rights era didn't have much of the iconic anthem of the generation, and now a lawsuit that seeks to establish "We Shall Overcome" is in the public domain will address that.

On Friday, Butler Films joined documentary filmmakers in a putative class-action brought against The Richmond Organization and Ludlow Music, which assert copyright dominion over a song whose roots connect to American folk singer Pete Seeger and the labor movement of the 1940s. The lawsuit challenges copyright registrations made in the 1960s.

Now, Lee Daniels' The Butler is getting involved. 

According to an amended complaint filed today, the 2013 film distributed by The Weinstein Co. originally was going to use "We Shall Overcome" in several crucial scenes, including as background music to archival footage as well as scenes depicting the 1963 riots in Birmingham, Alabama, the 1965 riots in Selma, Alabama, the conflict that year at the Pettus Bridge, and the 1968 riots in Washington following the assassination of Martin Luther King Jr.

Permission was sought from the publishers on at least four occasions, according to the complaint, but defendants "repeatedly stonewalled and rebuffed" attempts to license "We Shall Overcome" for use in The Butler.

Finally, contact was made.

"After a series of communications between Plaintiff Butler and Defendants, eventually, on September 27, 2012, Defendants advised Plaintiff that Defendants should and could charge Plaintiff the staggering sum of $100,000 for Plaintiff Butler’s proposed uses of We Shall Overcome in The Butler," states the complaint.

That was apparently too much for the film's budget, and after further negotiations where an offer was made of $50,000 for two uses of the song, a synch license was agreed to where the song would be used for no more than 10 seconds for $15,000.

"In fact, it is very difficult to even hear the use of the Song when watching the movie knowing exactly where the Song is played in the movie," continues the complaint.

Some may think this is evidence of greed, though royalties from the song are earmarked for the Highlander Research and Education Center to support art and research projects in the African-American community as well as the preservation of Civil Rights Movement documents. On the other hand, it's also said in the complaint that the Butler filmmakers offered to donate a portion of proceeds from the premiere to Highlander.

Regardless, the case turns on copyright issues and the validity of Ludlow's 1960s registrations on the song. Even though some of the melody and lyrics may already have been published courtesy of Seeger and others, the registrations claim entitlement to an "unpublished derivative work."

The defendants aren't rolling over on this one. They've retained Paul LiCalsi at Robins Kaplan, a respected litigator whose most famous client is Apple Corps Limited, the company established by The Beatles.

In a joint proposed schedule that was filed with the court, LiCalsi previewed what the defense will be in this litigation.

"This Court can find as a matter of law that the prima facie valid copyright registrations in the 1969 and 1963 registrations owned by Ludlow Music contain sufficiently original expression which constitutes a more-than merely trivial 'distinguishable variation' from any predecessor version of the Song that may be in the public domain," argues the defendants.

In other words, even if there's matter in the public domain, a derivative is protected as maybe articulated in this 2012 post about Sherlock Holmes.

Asked to comment about this, plaintiffs' attorney Randall Newman responded, "Even if the Defendants' statement was accurate (which we dispute), the 1960 and 1963 copyright applications contained numerous false and misleading statements that would render those copyright registrations invalid. Moreover, after the 1960 and 1963 copyrights were registered, the melody and lyrics were printed without a proper copyright notice resulting in forfeiture of the 1960 and 1963 copyrights."

The defendants dispute the divesting of copyrights, saying in their papers that the cited sources had copyright notices, and regardless, add, "Plaintiff has failed to plausibly plead that any of the publications listed in the Complaint were printed or published with the permission of the copyright owner (Ludlow Music) or the authors of the Song — all such allegations are made "upon information and belief" — and a reliance on pure, unsupported speculation in this regard cannot sustain Plaintiff's claims."

In the complaint demanding that "We Shall Overcome" be ruled out of copyright, a passage from Pete Seeger's 1963 book is quoted where he writes, "In the early ‘60s our publishers said to us, 'If you don’t copyright this now, some Hollywood types will have a version out next year like 'Come on Baby, We shall overcome tonight.'"

Funny enough, it's now a Hollywood type like Lee Daniels who is joining the effort to make "We Shall Overcome" freely available while it's the defendant who will be using the argument that a derivative version is what saves the song from the public domain.